Exhibit 10.2
AMENDED AND RESTATED
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EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement (this "Agreement") is
made and entered into as of the __ day of June, 2006 by and between PREMIER
ENTERTAINMENT LLC (the "Company") and XXXXXX XXXXXXXXX (the "Employee").
Hereafter, the Company and the Employee may be collectively referred to as
"Parties".
RECITALS
WHEREAS, the Company and the Employee have entered into that certain
Employment Agreement, dated June 6, 2003 (the "Original Agreement");
WHEREAS, the Company and the Employee desire to amend and restate the
Original Agreement;
WHEREAS, the Company is the owner of the HARD ROCK HOTEL & CASINO -
BILOXI in Biloxi, Mississippi (the "Resort"); and
WHEREAS, in conjunction with the development, building and operation of
the Resort, the Company is desirous of continuing to receive the services of
Employee and Employee is desirous of being so employed by the Company, and each
is willing to enter into this Agreement, all on the terms and subject to the
conditions herein contained.
AGREEMENT
NOW THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties
(intending to be legally bound) hereby agree as follows:
1. Recitals. The above recitals are true, accurate and hereby
incorporated in this Agreement as if fully set forth herein.
2. Employment of the Employee.
(a) The Company agrees to and hereby does employ the Employee,
and the Employee accepts such employment and agrees to discharge faithfully,
diligently and to the best of Employee's abilities, the responsibilities of such
employment on the terms and subject to the conditions herein provided.
(b) The term of Employee's employment hereunder shall commence
as of July 1, 2003 (the "Start Date"), and shall terminate on July 1, 2008 (the
"Scheduled End Date"), unless terminated earlier as provided in Section 5 and 6
hereof. The period of employment from the Start Date to and including the day
before the Resort opens for public gaming shall be referred to as the
"Pre-Opening Term" and the period of employment from the day the Resort opens
for public gaming to and including the Scheduled End Date, shall be referred as
the "Term".
3. Duties of the Employee. During the Pre-Opening Term and the Term,
the Employee shall:
(a) Devote substantially all of Employee's business time,
loyalty and attention necessary to diligently carry out the duties of Employee's
employment hereunder, applying Employee's best effort and skill for the benefit,
and to promote the interests, of the Company; provided, however, any business
time not spent on Company matters shall not interfere with Employee's duties to
Company hereunder nor conflict with the terms of this Agreement; and
(b) Act as the Resorts' President and Chief Executive Officer
for the Company and perform such services and assume such duties and
responsibilities as are assigned to Employee by a manager ("Manager") selected
by the Board of Managers of the Company (the "Board"), or the Board which are
consistent with the position of President and Chief Executive Officer, and
including, but not limited to, development and implementation of a pre-opening
and annual general business plan for the Resort, the operational policies and
procedures for the Resort, including all regulatory requirements necessary for
the operation of the Resort, and (subject to the prior approval of the Board,
which approval will not unreasonably be withheld or delayed) the hiring of all
executive and management level employees for the Resort each of whom shall
report directly to or, in Employee's sole discretion, indirectly to Employee;
and
(c) Report directly to the Manager and the Board; and
(d) Subject to subsection 3(h) below, have full power and
authority to execute contracts and sign checks in the ordinary course of the
Company's business on a basis consistent with the ordinary course of a prudently
managed and operated business substantially similar to the Company, and, upon
advance notice to the Manager, open any bank account on behalf of or for the
Company, and other such administrative and ministerial functions on behalf of
the Resort; and
(e) Train a qualified employee of the Company to perform
Employee's functions for the Company during such time or times as Employee is on
vacation or not at work as a result of illness or holiday (as contemplated by
Section 4(b) hereof); and
(f) Adhere to and comply with: (i) all local, state and
federal laws, rules and regulations applicable to Employee in the conduct of his
employment duties and responsibilities with and for the Company, and use his
best efforts to ensure the Company is in compliance with such laws, rules and
regulations, and (ii) the policies, rules and regulations of the Company
(including any employee handbook of the Company), which may be adopted and
changed from time to time by directive of the Board; and
(g) Review, understand and comply with, on behalf of the
Company, the following documents executed by the Company with either Hard Rock
Hotel Licensing, Inc. or Hard Rock Cafe International (STP), Inc., as
applicable: (1) License Agreement, (2) Memorabilia Lease, (3) Lease Agreement
(Cafe), and (4) Lease Agreement (Retail Store), copies of which will be
furnished to the Employee as soon as available.
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(h) Notwithstanding the foregoing, it is expressly understood
as a limitation of Employee's authority, Employee shall not perform or do any of
the following acts without first obtaining the express written approval of the
Board: (i) change the Employee's compensation, bonus or benefits as set forth
herein or any of the other terms or provisions of this Agreement; (ii) increase,
decrease or otherwise vary the salary or benefits of any employee of the Company
in excess of ten percent (10%) of the base salary of any such employee for each
calendar year; (iii) execute contracts or sign checks outside of the ordinary
course of the Company's business (as such business is defined in Section 3(d)
hereof); (iv) negotiate or execute any agreement with any employee or consultant
for the Company involving aggregate compensation of One Hundred Thousand Dollars
($100,000) or more during any calendar year; (v) negotiate or execute any single
agreement (whether for the purchase of goods, services, or otherwise) for the
Company, including amendments and modifications thereto, involving an aggregate
amount of One Million Dollars ($1,000,000) or more during the life of such
agreement; or (vi) negotiate or execute contracts or sign checks involving an
amount of more than Five Hundred Thousand Dollars ($500,000) in the aggregate
for any calendar month; and
4. Compensation. As complete compensation and in consideration of the
performance of services by the Employee and Employee's observance of the
provisions of this Agreement, the Company agrees to pay or provide, and Employee
agrees to accept, the following:
(a) Salary. During the Pre-opening Term, the Company shall pay
to Employee, at least on a semi-monthly basis a salary at an annualized rate of
Three Hundred Sixty Thousand and No/100 Dollars ($360,000.00) ("Pre-Opening
Salary"), subject to withholding of any applicable taxes. Commencing with the
opening of the Resort to the public for gaming, Pre-Opening Salary shall cease
and the base salary of Employee shall commence at an annualized rate of Three
Hundred and Fifty Thousand and No/100 Dollars ($350,000.00) ("Base Salary"),
less applicable withholding and taxes, payable in accordance with the normal
payroll practices of the Company. Thereafter, Base Salary may be reviewed from
time to time, but at least annually, for increases as determined by the Board.
(b) Benefits. During the Pre-Opening Term and the Term,
Employee shall be entitled to twenty (20) business days of paid vacation per
annum from and after the Start Date (at such time or times as is reasonably
agreed upon by the Parties), seven (7) paid holidays annually, and three (3)
paid sick days annually; provided, however, the Employee shall only be entitled
to ten (10) business days vacation for the 2003 calendar year. Vacation pay
shall be non-cumulative and to the extent not taken shall not be compensated. In
addition, during the Pre-Opening Term and the Term, Employee (including the
immediate family of Employee) shall be entitled to medical (including dental and
vision) and hospitalization insurance or reimbursement therefore that is
substantially similar to coverage currently in place for Employee and his
immediate family, and participation in any Company retirement programs such as a
401k. The Company further agrees to waive any eligibility period otherwise
applicable to any insurance coverage required under this provision (to the
extent that the applicable insurance company is able to do so) or reimburse
Employee for COBRA coverage until Employee and his immediate family qualify for
coverage under the Company's plan, and to provide during the Term and, as soon
as reasonably practicable, the Pre-Opening Term, a life insurance policy in the
amount of $1,000,000.00 covering Employee with a beneficiary to be named by
Employee. Employee acknowledges that Company may, in its sole discretion, obtain
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key-man life insurance on the life of the Employee, naming the Company as the
beneficiary, and the Employee shall cooperate with the Company in obtaining such
life insurance policy, including, without limitation, submitting to a physical
exam (and, if applicable, blood and urine samples), providing information on
past health condition, and completing reasonably required paperwork required by
the insurance company. The Company will reimburse Employee for COBRA coverage,
if necessary, until an established health plan is put in place by Company.
(c) Business Expenses. The Company shall provide Employee with
a company credit card carrying a credit limit of at least $20,000.00, which
shall be used for expenses incurred in connection with the proper performance of
Employee's duties hereunder. The Company will also promptly reimburse Employee
for other business expenses reasonably and actually incurred by Employee in
connection with the performance of Employee's duties hereunder, upon submission
of reasonable written verification or receipts documenting such expenses,
including, but not limited to, cell phone charges and fees or membership dues
charged by civic or private clubs approved by Manager for Employee's membership.
(d) Automobile Allowance. In addition to any other payments
provided for herein, during the Pre-Opening Term and the Term, Employee shall be
paid $500.00 monthly as and for expenses related to the operation of an
automobile for personal use. If Employee at any time intends to use such
automobile for any business purposes, Employee shall cause his automobile
insurance policy to cover the Company as an additional insured for general
liability insurance.
(e) Bonus. Commencing ninety (90) days (quarterly) following
the opening of the Resort for public gaming and at the conclusion of each ninety
(90) day (quarter) period thereafter, in addition to Base Salary, Employee shall
be paid an additional sum of money to the extent applicable ("Bonus"), based on
the Resort's earnings before interest, taxes, depreciation and amortization
("EBITDA"), with such Bonus to be calculated cumulatively as follows:
Quarterly EBITDA Bonus
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$ 8,750,000 to 10,000,000 $25,000.00
$10,000,001 to 10,500,000 $ 6,250.00
$10,500,001 to 11,250,000 $ 8,750.00
$11,250,001 to 12,000,000 $ 9,375.00
$12,000,001 and above $10,000.00
The parties acknowledge and agree that the annual management fee payable by the
Company to GAR, LLC in the aggregate amount of $2,000,000 shall be excluded from
the calculation of the Resort's EBITDA.
Furthermore, the Parties acknowledge and agree that because the
economic seasonality of Resort's business may cause fluctuation in Resort's
EBITDA from quarter to quarter, Employee shall have the opportunity to recapture
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quarterly Bonuses not achieved where the annual EBITDA meets or exceeds certain
levels. For example, where Employee during a 12 month period only qualified for
and was paid $25,000 for one quarter's Bonus but where the EBITDA for that year
was $40,000,000, then Employee would be paid an additional $75,000 ($100,000
less the $25,000 previously paid) Bonus. Such annual EBITDA levels, together
with the annual Bonus (calculated cumulatively) payable to Employee, are as
follows:
Annual EBITDA Annual Bonus
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(less any Bonus paid Employee during
the previous 4 quarters)
$35,000,000 to $40,000,000 $100,000.00
$40,000,001 to $42,000,000 $25,000.00 per $1,000,000
above $40,000,001 to $42,000,000
$42,000,001 to $45,000,000 $35,000.00 per $1,000,000
above $42,000,001 to $45,000,000
$45,000,001 to $48,000,000 $37,500.00 per $1,000,000
above $45,000,001 to $48,000,000
$48,000,001 and above $40,000.00 per $1,000,000
Any Bonus payable under this Section 4(e) shall be paid within thirty
(30) days following the close of books whether the period be quarterly or
annually.
(f) Bonus Adjustment and Discretionary Bonus. In as much as
the capital structure for the financing and development of the Resort may
change, the Company (through its Board) may determine in its sole discretion, to
reduce EBITDA levels necessary for Bonus and or issue discretionary Bonus
payments as the Company (through its Board) sees fit. The Company (through its
Board) also reserves the right in its sole discretion, to recognize the effects
of force majeur, as it may exist from time to time, on the operating business,
and reduce EBITDA levels necessary for Bonus and or issue discretionary Bonus
payments as the Company (through its Board) sees fit.
(g) Calculation of EBITDA. Any and all determinations or
calculations of EBITDA for the purposes set forth herein shall be determined by
the Company (through its Board) in consultation with its outside accounting
firm.
(h) Signing Bonus. The Employee acknowledges receipt of a
signing bonus in the amount of Twenty-Five Thousand Dollars ($25,000) paid on
July 16, 2003.
5. Termination By Company.
(a) For Cause. The employment of Employee under this Agreement
may be terminated by the Company for Cause (as defined below) at any time, in
which event, the Company shall have no further liability to Employee hereunder
except for the payment of any accrued but unpaid portion of Pre-Opening Salary
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and Base Salary through the date of termination of Employee's employment and any
other monies Employee is legally entitled to, if any, as a matter of right under
Company's written and established policies or benefit plans (which have been
approved by the Board) as of the date of termination, which limited payment
obligation shall survive such termination and the terms and provisions of
Sections 8 through and including Section 21 hereof shall also survive. For
purposes hereof, the term "Cause" includes any one or more of the following:
(i) Employee's fraud, dishonesty, theft, deceit, willful
misconduct, or gross or persistent negligence in the performance of his
duties hereunder, including, without limitation, willful failure to
perform such duties as may properly be assigned him hereunder, and his
act of quitting or resigning his employment except where Employee
terminates this Agreement for any of the reasons specified below in
Sections 6(ii) through 6(vi); provided, Employee must give Company at
least thirty (30) days prior written notice before quitting or
resigning his employ with Company; or
(ii) Employee's material breach of any provision of this
Agreement applicable to Employee; provided, however, if the Company
shall have actual knowledge of the Employee's breach of Sections 3(a),
3(b), 3(c) (but in no way does the inclusion of subsection (c) herein
diminish the Employee's obligation to report only to the Manager and
the Board of the Company), 3(e), 3(f) or 3(g) hereof, the Company shall
provide written notice to Employee reasonably describing such claimed
breach and Employee shall have three (3) calendar days to cure such
breach, to the extent such breach is capable of being cured; or
(iii) Employee's failure to make timely application and
qualify (or, after having so qualified, being thereafter disqualified)
under any gaming suitability or licensing requirement to which Employee
may be subject by reason of his position with Company; provided,
however, if the Company believes the Employee is not being timely in
such application (to the extent applicable), the Company shall provide
written notice to Employee reasonably describing such claimed breach
and Employee shall have three (3) calendar days to cure such breach, to
the extent such breach is capable of being cured; or
(iv) A termination of this Agreement by the Company that
follows a request by Employee that he be permitted to cancel or
terminate this Agreement before the expiration of the Term except where
Employee terminates this Agreement for any of the reasons specified
below in Sections 6(ii) through 6(vi); or
(v) Employee's willful or intentional violation of any
applicable law or regulation that actually causes or is reasonably
likely to cause an adverse effect on the Company, its assets, financial
condition, or business as reasonably determined by the Board of the
Company in good faith upon consultation with outside legal counsel; or
(vi) Habitual intoxication or drug addiction that adversely
effects Employee's job performance and duties hereunder or the
reputation or best interests of the Company; or
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(vii) Employee's breach of a fiduciary duty to the Company for
personal profit or gain of Employee or Employee's family or affiliates,
or any other conflict of interest or self-dealing by Employee involving
or relating to the Company; provided, however, if the Company shall
have actual knowledge of the Employee's breach, the Company shall
provide written notice to Employee reasonably describing such claimed
breach and Employee shall have three (3) calendar days to cure such
breach, to the extent such breach is capable of being cured; or
(viii) Employee's Disability. As used herein, the term
"Disability" shall mean a physical or mental illness, incapacity or
disability (as verified by a licensed physician in good standing
selected by Company) preventing the Employee from satisfactorily
performing his duties hereunder for ninety (90) calendar days in any
consecutive one-hundred twenty (120) calendar day period.
(b) Death of Employee. This Agreement shall automatically
terminate and the Company shall be relieved of any liability hereunder in the
event of Employee's death, provided, however, the Company shall remain obligated
to discharge the obligation specified above in Section 5(a); provided, further,
Employee's heirs and legal beneficiaries shall have no further rights or claims
against the Company.
6. Severance Allowance and Termination By Employee. If any of the
events specified below in Subsections 6(i) through 6(vi) occur during the
Pre-Opening Term or the Term, the Company shall, at the sole and absolute
discretion of Employee, pay and/or provide to Employee a "Severance Allowance"
as hereinafter defined. Additionally, where below listed events 6(ii), 6(iii),
6(iv), 6(v) or 6(vi) occur during the Pre-Opening Term or the Term, the Employee
shall also be entitled to terminate this Agreement; provided, however, Sections
8, 9, 10, 11, 13, 14, 16, 17, 18, 20, 21 and 22 hereof shall survive any such
termination; provided, further, the duration of the identified one (1) year
non-compete set forth in Section 9(a)(iv) hereof shall be reduced to only one
(1) month (the "One-Month Non-Compete Limitation").
(i) Employee is terminated by the Company for any reason other
than as specified above in Section 5 hereof;
(ii) Employee's duties or position/title with the Company, as
set forth under Sections 3(b), (c) or (d) hereof, diminish in any
material respect after the Employee complains in writing to the Company
of such claimed diminishment and the Company does not cure such issue
within fifteen (15) days thereof;
(iii) Employee's Pre-Opening Salary or Base Salary is reduced
(excluding reductions due to withholdings of any applicable taxes) or
the Pre-Opening Salary or Base Salary, or, to the extent applicable,
Bonus is not paid in a timely manner if and when due as provided in
this Agreement, subject to a five (5) day cure period and good faith
delays as a result of disagreements over applicable calculations;
(iv) The Company breaches any provision of this Agreement
applicable to it in any material respect after written notice
reasonably describing such claimed breach is provided by Employee to
Company and Company is provided with a reasonable opportunity to cure
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such breach, which in any event shall be no less than a thirty (30)
calendar day period; and
(v) A "Change of Control" of the Company occurs, whereby at
least sixty percent (60%) of the total issued and outstanding equity of
the Company is sold, transferred or conveyed in a transaction or the
Company merges with any other person or entity which is not an
affiliate of the Company or an affiliate of the current equity
holders(s) of the Company, unless, however, Employee, in his sole and
absolute discretion, decides to be employed or hired by any such
acquirer or merger partner in any capacity whatsoever, whether as an
employee, officer, manager, consultant or otherwise. For the avoidance
of doubt, the acquisition, directly or indirectly of 60% or more of the
total issued and outstanding equity of the Company by LUK- Ranch
Entertainment LLC ("LRE") or any affiliate of LRE shall not constitute
a Change of Control.
(vi) In the event the Employee and the Company have not
reached an agreement on mutually acceptable terms to enter into a new
employment agreement by July 1, 2007, the Employee, in his sole
discretion, may terminate this Agreement on or after such date;
provided, however, the Employee shall provide written notice of such
intent to the Company at least six (6) weeks prior to the date of such
termination.
For the purpose of this Agreement, the term Severance Allowance shall
be defined as and shall be limited to only the following (and, notwithstanding
the foregoing, Employee shall only be entitled to the following if Employee
signs a general release in form and substance satisfactory to the Company in its
sole, but reasonable, determination):
(a) In addition to any accrued but unpaid Pre-Opening Salary
and/or Base Salary, as applicable, an amount equal to one year's Base Salary.
(b) In addition to any accrued but unpaid Bonus, to the extent
applicable, an amount equal to the Bonus otherwise payable, if at all, based on
the annualization of the year-to-date EBITDA as accrued by the Company in the
year of such termination.
(c) The medical benefits specified in Section 4(b) will be
provided to Employee for a period of one year from the date of the Employee's
termination with the Company to the extent the Company's insurance company
agrees to do so, or in lieu of carrying Employee and his immediate family on any
Company health insurance plan, the Company shall reimburse Employee and his
immediate family for the actual out-of-pocket cost actually incurred in
obtaining substantially the same coverage as provided to Employee under this
Agreement; provided, however, all such benefits described in this Item (c) of
Section 6 shall cease upon Employee's commencement of employment with another
employer or a consulting relationship with a third party that provides Employee
with substantially similar compensation and medical benefits as set forth
herein.
(d) Sixty-five percent (65%) of the amount in this Section
6(a) shall be paid to Employee in a lump sum within one week following
termination of the Agreement for any reasons specified above in Section 6(i)
through 6(vi) and the remaining thirty-five percent (35%) of such amount will be
paid, if at all, one year thereafter to ensure the Employee's complete
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compliance with Sections 8 and 9 hereof. Items (b) and (c) of this Section 6
shall be calculated and payable to Employee, if at all, in the ordinary course
of the Company's business (and, if applicable, consistent with the Company's
established practice and/or consistent with this Agreement).
(e) To the fullest extent permitted by applicable law, the
payments contemplated by Section 6 hereof shall constitute the exclusive and
sole remedy for any termination of Employee's employment (whether pursuant to,
or in violation of, the terms of this Agreement). Employee covenants not to
assert or pursue any remedies, other than an action to enforce the payments
specifically due to Employee under this Agreement, at law or in equity, with
respect to any termination of employment, and shall execute a release and waiver
on such reasonable terms and conditions as the Company may reasonably require as
a condition of entitlement to such payments; provided, however, any such release
that Employee is required to execute under this Section 6 shall not release the
Company from any of its obligations under this Section 6.
(f) The obligation and duties of the Parties specified above
in this Section 6 shall survive any termination of this Agreement.
7. Indemnification and Liability Insurance.
(a) The Company agrees to indemnify, protect, defend and hold
Employee harmless from and against all costs and expenses, including, without
limitation, reasonable attorney fees and costs, liabilities, suits, actions,
causes of action, demands, damages, assessments, fines, penalties, charges,
administrative and judicial proceedings, orders, judgments, and losses
(collectively, "Losses"), directly or indirectly arising from or attributable
to, in whole or in part, the Company's employment of Employee as contemplated in
this Agreement; provided, however, the Company shall have no such
indemnification obligation if any such Losses are a result of the gross
negligence, bad faith or willful misconduct by the Employee or the breach of
this Agreement by Employee.
(b) The Company shall obtain D&O/E&O insurance for its
officers and Board members, in reasonable and prudent amounts upon consultation
with the Company's insurance agent (as soon as reasonably practicable), and the
Company agrees that Employee will be covered by such insurance for as long as
Employee is employed by the Company and for two years thereafter.
(c) The provisions of this Section 7 shall survive any
termination of this Agreement.
8. Disclosure of Confidential Information.
(a) Definition of Confidential Information. For purposes of
this Agreement, "Confidential Information" means any information that is not
generally known to the public that relates to the existing or reasonably
foreseeable business and operations of the Company which has been expressly or
implicitly protected by the Company or which, from all of the circumstances, the
Employee knows or has reason to know that the Company intends or expects the
secrecy of such information to be maintained (whether or not any such
information is marked "Confidential"). Confidential Information includes, but is
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not limited to, business plans, strategies, projections, marketing plans,
information contained in or relating to customer lists, contracts, account
information, merchandising, selling, accounting, finances, know-how, trademarks,
trade names, trade practices, trade secrets and other proprietary information of
the Company.
(b) Employee Shall Not Disclose Confidential Information. The
Employee shall not, during the Pre-Opening Term or the Term or at any time
following the termination of Employee's employment with the Company (whether by
Employee or Company), use, show, display, release, discuss, communicate, divulge
or otherwise disclose (whether directly or indirectly) Confidential Information
to any person, firm, corporation, association, or other entity for any reason or
purpose whatsoever, without the prior written consent or authorization of the
Company.
(c) Scope. Employee's covenant in Subsection 8(b) to not
disclose Confidential Information shall not apply to information which, at the
time of such disclosure, may be obtained from sources outside of the Company,
its agents, lawyers or accountants, so long as those sources did not receive the
information directly or indirectly as the result of Employee's action or
inappropriate or intentional inaction.
(d) Title; Work for Hire. (i) Any and all copyrights, patents,
trade secrets, and other intellectual property rights and general intangibles
associated with or relating to any ideas, concepts, programs, know-how, data,
methods, techniques, inventions, processes, computer software, or works of
authorship developed, used, developed or created by Employee during his
employment with Company and that in any way relate to the business, assets or
operation of the Company or the operation of a hotel or gaming facility
(collectively, "Work Product"), shall belong exclusively to and be owned by
Company and shall, to the fullest extent possible, be considered a work made by
Employee for hire for Company within the meaning of Title 17 of the United
States Code. To the extent Work Product may not for any reason be considered
work made by Employee for hire for Company, Employee hereby irrevocably and
unconditionally assigns, transfers and conveys to Company any and all right,
title, and interest Employee has in such Work Product, and upon creation of any
Work Product Employee shall automatically assign, transfer and convey to
Company, without any requirement of further consideration or action, any and all
right, title, and interest Employee may have in such Work Product. Upon
Company's request, Employee shall take all action, including, without
limitation, the execution and delivery of instruments of conveyance and other
documents and instruments, as may be appropriate to give full and proper effect
to such assignments and as may be necessary or desirable to transfer, perfect,
and defend Company's ownership of such Work Product.
(ii) Without limiting the foregoing, any and all trade
secrets, improvements, documents, and other tangible or intangible property,
relating in any way to the business, operations or assets of the Company which
are conceived or generated by Employee or come into Employee's possession during
the employment period shall be and remain the exclusive property of the Company,
and Employee agrees to return any and all documents, and tangible and intangible
property, including, but not limited to, all records, manuals, books, blank
forms, documents, contracts, letters, memoranda, notes, notebooks, reports,
data, tables, magnetic tapes, computer disks, calculations or copies thereof,
which are the property of the Company or which relate in any way to the
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business, customers, products, practices or techniques of the Company, and all
other property of the Company, including, but not limited to, all documents
which in whole or in part contain any Confidential Information of the Company
which in any of these cases is in Employee's possession or under Employee's
control, to the Company upon the termination of Employee's employment with the
Company, or at such earlier time as the Company may request him to do so, and
the Employee shall promptly certify in writing to the Company that Employee has
returned all of such items to the Company.
(e) Compelled Disclosures. In the event a third party seeks to
compel disclosure of Confidential Information by the Employee by judicial or
administrative process, the Employee shall promptly notify the Manager or the
Company of such occurrence and promptly furnish to such Manager or the Company a
copy of the demand, summons, subpoena or other process served upon the Employee
to compel such disclosure, and will permit the Company to assume, at its
expense, but with the Employee's cooperation, defense of such disclosure demand.
In the event that the Company refuses to contest such a third party disclosure
demand under judicial or administrative process, or a final judicial order is
issued compelling disclosure of Confidential Information by the Employee, the
Employee shall be entitled to disclose such information in compliance with the
terms of such administrative or judicial process or order.
9. Non-Solicitation; Restrictive Covenants. (a) During the term of
Employee's employment, it is acknowledged that the Employee will obtain
knowledge and familiarity with the operations of the Company, the conduct of its
business, its operating and marketing procedures, the identity and requirements
of its customers, suppliers and vendors, intellectual property, trade secrets,
and other proprietary information, which must be safeguarded. To protect the
Company, the Employee agrees that during the term of Employee's employment and
for a period of one (1) year after the Employee's date of termination of
employment with the Company (subject to the One-Month Non-Compete Limitation set
forth in Section 6 hereof), if this Agreement is terminated by the Company
pursuant to Section 5 hereof, or mutually in writing by the Company and the
Employee, to the furthest extent permitted by law, the Employee shall not
directly or indirectly (except on behalf of and for the benefit of Company and
its affiliates):
(i) Solicit or otherwise encourage any employee, independent
contractor, officer or consultant of the Company to terminate his or
her employment or relationship (contractual or otherwise) with the
Company, or to enter into employment with any other person or entity;
or
(ii) Induce, persuade or entice any material customer or
supplier of Company to terminate or cease its or their relationship
(contractual or otherwise) with Company, or to enter into any
relationship with any other person or entity engaged in a business in
competition with Company; or
(iii) In any way, slander, libel or through any other means
take any action which is or is intended to be detrimental to the
Company, its affiliates, business, officers, personnel or operations,
except that the recitation of the truth shall be deemed to be an
absolute defense of any such action hereunder; or
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(iv) Except for the Employee remaining employed with his
current employer solely for a transition period not to exceed July 15,
2003, accept employment with or be employed in any capacity (whether
officer, director, partner, manager, employee, shareholder, member,
independent contractor, consultant or otherwise) by any company, firm
or entity engaged in the same or substantially similar business of the
Company anywhere in the counties of Hancock, Harrison, or Xxxxxx,
within the State of Mississippi; provided, however, Employee may own up
to, but not more than, a five percent (5%) equity interest in any
entity whose stock is traded publicly on a national securities
exchange.
(b) The Employee agrees to and shall inform any business
entity or other person that the Employee becomes associated with or employed by
after the termination of the Employee's employment with Company for any reason,
and for a period of one (1) year thereafter, of all of the restrictions
contained in Sections 8 and 9 hereof.
(c) The Employee acknowledges and agrees to the
reasonableness, applicability, scope and nature of the covenants contained
herein, and further agrees that the time period and scope specified above are
the appropriate, minimum and reasonable time and scope necessary to protect
Company in the conduct of its business. The Employee represents and warrants to
the Company that, in the event of enforcement of the provisions of this Section,
the Employee's experience and capabilities are such that the Employee can obtain
employment not competitive with the business of the Company sought to be
protected hereunder, and that the enforcement of such covenants and
representations hereunder by the Company by way of injunction will not prevent
the Employee from earning a livelihood.
(d) The Employee shall not approach or assist any person or
entity for any such purpose or action described in this Section 9 or authorize,
encourage or cooperate with the taking of any such action by any other person or
entity. If any provision or part of this Agreement (including, without
limitation, any restrictive covenant) is held to be unenforceable, the Employee
and the Company agree to modify such provision (or restrictive covenant) or,
that the court or arbitrator, as applicable, making such determination shall
have the power to modify such provision (or restrictive covenant), to delete
specific words or phrases, or, if applicable, reduce the duration or scope or
area of such provision ("blue-penciling"), and in its reduced or blue-penciled
form, such provision (or restrictive covenant) shall then be enforceable and
shall be enforced.
(e) The Employee and Company recognize that the services to be
rendered by the Employee to Company are special and unique and of extraordinary
character and that the Employee's undertakings are essential to Company, and
that, in the event of any breach or threatened breach by the Employee of the
terms and conditions of this Agreement, including, but not limited to, the
termination of the Employee's employment with Company in order to perform
services for any other person or entity in conflict with Section 9 or any other
breach of any provision of this Agreement, Company will sustain losses which are
not fully compensable by monetary damages. Therefore, the Company shall be
entitled to institute and prosecute proceedings in any court of competent
jurisdiction to enjoin any such breach or threatened breach, and, in addition
thereto, to obtain damages or enforce the specific performance of this Agreement
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by the Employee, or to obtain any combination of such remedies as the Company
shall elect.
(f) The Company shall have the right and remedy to bring legal
action to require Employee to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits
(collectively, "Improper Benefits") derived or received by Employee as the
result of any transaction constituting a breach of either Section 5(a)(i), (ii),
(v) or (vii) hereof, and Employee hereby agrees to account for such Improper
Benefits and promptly pay over all such Improper Benefits to the Company, in
immediately available funds, without deduction or offset of any kind. The
Employee acknowledges and agrees that the Company shall have the right and
remedy to collect from Employee, or have imposed against Employee as part of any
necessary court or arbitration proceeding or collection action, any and all
reasonable costs and expenses of enforcement or collection actually incurred by
Company arising out of any breach of any such provisions of this Agreement by
Employee, it being stipulated and acknowledged that Employee shall pay and be
responsible for all such reasonable expenses of enforcement or collection, the
same to include reasonable attorney fees, accountant fees, and court costs.
10. Construction. The parties to this Agreement and their counsel have
mutually contributed to its drafting. Consequently, no provision of this
Agreement shall be construed against any party on the ground that such party
drafted the provision or caused it to be drafted.
11. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the Parties with respect to the employment of the
Employee by the Company, and supersedes any prior understanding or agreement
(oral or written) between the Parties relating thereto. No amendment, waiver or
modification of any provision of this Agreement shall be binding unless made in
writing and signed by each of the Parties.
12. Assignment. This Agreement requires the personal services of and is
not assignable by the Employee, and any such assignment or transfer that does
not comply with this provision shall be void. Except for an assignment by the
Company to an affiliate of the Company or an affiliate of the current
equity-holder(s) of the Company, this Agreement shall not be assignable or
transferable to any other person or entity without the prior written consent of
Employee, which consent may be withheld for any reason or no reason, and any
such assignment or transfer that does not comply with this Section 12 shall be
void. Notwithstanding anything to the contrary contained in this Agreement
(including, without limitation, this Section 12), if the Company (or an
affiliate thereof) or the requisite number of its equity-holders decides to sell
the Company (or an affiliate thereof) or all or substantially all of its assets,
or enter into any recapitalization, merger, consolidation, or similar
transaction, no consent or approval of any such transaction shall be required to
be obtained from or by Employee, and any such transaction may be consummated
regardless of the disapproval of Employee.
13. Severability. The provisions of this Agreement are severable, and
if any one or more provisions shall be determined by a court of competent
jurisdiction or arbitrator, as applicable, to be illegal or otherwise
unenforceable, in whole or part, the remaining provisions, and any partially
unenforceable provision to the extent enforceable in any jurisdiction, shall
nevertheless be valid, binding and enforceable.
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14. Binding Agreement. The rights and obligations of the Company under
this Agreement shall inure to the benefit of, and shall be binding upon, the
Company, and its successors and permitted assigns (subject to Section 12
hereof), and the rights and obligations of Employee under this Agreement shall
inure to the benefit of Employee, and shall be binding upon, Employee and his
heirs, personal representatives and estate.
15. Notices. Any notice to be given under this Agreement shall be in
writing and personally delivered in writing or shall have been deemed duly given
when received or within five (5) days of deposit in the United States mail,
postage prepaid, registered or certified, return receipt requested, whichever is
earlier. If mailed to the Company, it shall be addressed to the Company at its
principal place of business, and if mailed to Employee, it shall be addressed to
him at his last known home address, or such other addresses as the Company or
the Employee may hereafter designate in writing to the other.
16. Waiver. The failure of either Employee or the Company to enforce
any provisions of this Agreement shall not in any way be construed as a waiver
of any such provision or provisions as to any future violations thereof nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the Parties herein are cumulative, and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances
(subject to Section 6(g) hereof).
17. Choice of Law. The Parties expressly agree that this Agreement and
any dispute arising under this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Mississippi,
without regard to conflicts of law principles.
18. Arbitration. All disputes or claims arising out of or in any way
relating to this Agreement shall be submitted to and determined by final and
binding arbitration under the American Arbitration Association's Rules for the
Resolution of Employment Disputes. Arbitration proceedings may be initiated by
either of the Parties to this Agreement upon prior written notice to the other
and to the American Arbitration Association and shall be conducted by three (3)
neutral and independent arbitrators in Biloxi, Mississippi; provided, however,
that the Parties may mutually agree in writing following the giving of such
notice to have the arbitration proceedings conducted with a single neutral and
independent arbitrator. The notice must specify in general the issues to be
resolved in any such arbitration proceeding. The arbitrators shall be selected
by agreement of the Parties from a list of five (5) or more independent and
neutral arbitrators proposed by the Parties. If the Parties fail to agree on one
(1) or more of the persons to serve as arbitrators within fifteen (15) days
after delivery to the Parties of the list as proposed by the American
Arbitration Association, then, at the request of either Employee or the Company,
such arbitrators shall be selected at the discretion of the American Arbitration
Association. Where the arbitrators shall determine that an arbitration
proceeding was commenced frivolously or without a basis or primarily for the
purpose of harassment or delay, the arbitrators may assess that party the cost
of such proceedings including reasonable attorneys' fees incurred by the other
party. In all other cases, except as otherwise expressly provided in this
Agreement, each of the Parties shall bear its own costs and its pro-rata share
of the fees and expense charged by the arbitrators and the American Arbitration
Association in connection with any arbitration proceeding. Any award or
equitable relief granted by the arbitrators shall be enforced in accordance with
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the appropriate provisions of Mississippi law and/or the Federal Arbitration
Act, as applicable. Notwithstanding the foregoing, nothing herein will prevent
either of the Parties from seeking and obtaining equitable relief from a court
of competent jurisdiction pending a final decision of the arbitrators and the
proper filing of such decision with such court, in which event, each of the
Parties, (a) consents and submits to the jurisdiction of the Courts of the State
of Mississippi and of the Courts of the United States for a judicial district
within the territorial limits of the State of Mississippi for all purposes of
this Agreement; and (b) consents and submits to the venue of such action or
proceeding in the City of Biloxi, Mississippi (or such judicial district of a
Court of the United States as shall include the same).
19. Signature Warranty. The Company represents and warrants that the
individual executing this Agreement on behalf of the Company has all necessary
power and authority to do so on behalf of the Company.
20. Counterparts; Fax Signatures. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original and which
taken together shall constitute one and the same instrument. A fax signature
hereto shall be deemed to be as legally enforceable as a signed original hereto.
21. Employee's Warranty. (a) Employee represents and warrants to
Company that: (i) he is not bound by any other agreement, whether written or
oral, which would preclude him from entering into this Agreement and working for
Company, and (ii) he will not utilize, in connection with his employment, any
materials, confidential business information or trade secrets that may be
construed as confidential or proprietary to any other person or entity. If
Employee breaches this warranty, Employee agrees to hold Company harmless from
any and all costs and damages (including, but not limited to, reasonable
attorney fees) actually suffered or incurred by Company in defending any lawsuit
brought against it due to the employment of Employee or on account of any
material, information or trade secrets improperly used by Employee. Employee
acknowledges that, in his decision to enter into this Agreement, Employee is not
relying on any representation or warranty from or made by the Company or any of
its managers, members or officers, other than those that are expressly provided
in this Agreement.
(b) Employee acknowledges and agrees that he has had ample opportunity
to read this Agreement in its entirety before his execution hereof, and that
this Agreement is entered into voluntarily and without duress of any kind.
Employee acknowledges and agrees that he has been represented by independent
legal counsel of his own choosing, and that Employee has read and fully
understands the terms and provisions of this Agreement.
22. Guarantee of Payment. The Parties hereby expressly agree and
acknowledge that the Employee has received to date Pre-Opening Salary in excess
of $720,000.00, and, accordingly, none of Xxx Xxxxxxxx III, Xxxxx Xxxxxxxx,
Xxxxx Xxxx, GAR, LLC nor any of the members or affiliates thereof shall have any
further obligation with respect to the joint and several guarantee of payment of
the Pre-Opening Salary made by Xxx Xxxxxxxx III, Xxxxx Xxxxxxxx and Xxxxx Xxxx
pursuant to the terms of the Original Agreement.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have caused the Agreement to be
executed as of the date first written above.
EMPLOYEE: COMPANY:
-------- -------
/s/ Xxxxxx Xxxxxxxxx PREMIER ENTERTAINMENT LLC
---------------------------
XXXXXX XXXXXXXXX
BY: GAR, LLC, its sole member
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxxxxx
President
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